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Why a “drone court” won’t work

Such a system would ostensibly have two benefits: increasing the legitimacy of the drone war and placing a check on the executive branch’s power to decide life and death. On closer examination, both advantages prove illusory.

First, few outraged Pakistanis would be assuaged by the distinction of judicial scrutiny, and civil libertarians would point out that the target is never given a chance to make a case before the judge. This lack of an “adversarial setting” for the subject might be defensible in the case of FISA warrants, but the stakes here are far higher than a simple wiretap.

As for the balance of powers, that is where we dive into constitutional hot water. Constitutional scholars agree that the president is sworn to use his “defensive power” to protect the U.S. and its citizens from any serious threat, and nothing in the Constitution gives Congress or the judiciary a right to stay his hand. It also presents a slippery slope: If a judge can call off a drone strike, can he also nix a raid such as the one that killed Osama bin Laden? If the other branches want to scrutinize the president’s national security decisions in this way, they can only do so retrospectively.

There is also a human problem: Few judges would be eager to find themselves in this role.

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Well then, time to start capturing Americans you see as threats. Unless they are actively at the moment threatening an attack against their captors, they have the right to a trial. That is part of being a citizen, for them and for us. They get the right to due process and like in many other cases we are forced to wait for justice if it comes at all.

Not that I’m advocating it but Congress can – I think – pass a funding requirement that says no money can be used to target Americans for assassination.

SteveMG on February 19, 2013 at 4:20 PM

Wouldn’t that violate the separation of powers?

If we assume for the sake of argument that the president has the constitutional authority to target Americans, then condition funding on the president refraining from exercising said authority essentially legislates the president’s power away.

If congress could condition funding on a president not exercising his constitutional power, then the president becomes almost completely impotent, save for his (admittedly considerable) veto power.

There is an alternative, albeit a somewhat unsatisfying one: Congress could create a “cause of action” that would give the families of those killed the ability to seek damages. Clearly, no amount of money is going to make up for a wrongful death. But, as Stephen I. Vladeck of American University’s law school points out, the threat of potential liability might make an administration that much more careful in deciding both the imminence of the threat and the feasibility of capture as an alternative.

Really? This administration which has spent trillions of the next generation’s dollars is going to be deterred by, what, the possibility of a half-million dollar settlement? Chickenfeed. And the lawyers to fight it are already on the federal payroll. Obama loves to spend other people’s money to look like he cares, this is no dis-incentive whatsoever.